Faculty Handbooks as Enforceable Contracts - American
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Faculty Handbooks as Enforceable Contracts: A State Guide
Transcript of Faculty Handbooks as Enforceable Contracts - American
Faculty Handbooks as Enforceable Contracts:
A State Guide
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© 2009 American Association of University Professors. All rights reserved. Reproductions of excerpts for nonprofit use is hereby granted to educators, scholars, students, nonprofit educational institutions, and government. Any reproduction for commercial use without written permission is strictly prohibited. American Association of University Professors 1133 Nineteenth Street, NW Suite 200 Washington, DC 20036-3655 (202) 737-5900 www.aaup.org
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Contents Introduction ...........................................................................................................................vii Background ...........................................................................................................................viii Terminology ............................................................................................................................. x Case Summaries and Citations
Alabama.............................................................................................................................. 1 Alaska ................................................................................................................................. 2 Arizona................................................................................................................................ 2 Arkansas.............................................................................................................................. 2 California ............................................................................................................................ 3 Colorado.............................................................................................................................. 4 Connecticut ......................................................................................................................... 5 Delaware ............................................................................................................................. 6 District of Columbia ........................................................................................................... 7 Florida................................................................................................................................. 8 Georgia................................................................................................................................ 9 Hawaii............................................................................................................................... 10 Idaho ................................................................................................................................. 10 Illinois ............................................................................................................................... 11 Indiana .............................................................................................................................. 13 Iowa .................................................................................................................................. 14 Kansas............................................................................................................................... 15 Kentucky........................................................................................................................... 16 Louisiana........................................................................................................................... 16 Maine ................................................................................................................................ 18 Maryland........................................................................................................................... 18 Massachusetts ................................................................................................................... 19 Michigan ........................................................................................................................... 21 Minnesota.......................................................................................................................... 21 Mississippi ........................................................................................................................ 22 Missouri ............................................................................................................................ 22 Montana ............................................................................................................................ 23 Nebraska ........................................................................................................................... 23 Nevada .............................................................................................................................. 24 New Hampshire ................................................................................................................ 24 New Jersey........................................................................................................................ 24 New Mexico...................................................................................................................... 25 New York.......................................................................................................................... 26 North Carolina .................................................................................................................. 29 North Dakota..................................................................................................................... 29 Ohio .................................................................................................................................. 30 Oklahoma.......................................................................................................................... 31 Oregon .............................................................................................................................. 32 Pennsylvania ..................................................................................................................... 32 Rhode Island ..................................................................................................................... 35 South Carolina .................................................................................................................. 35 South Dakota..................................................................................................................... 35
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Tennessee.......................................................................................................................... 36 Texas................................................................................................................................. 36 Utah................................................................................................................................... 37 Vermont ............................................................................................................................ 38 Virginia ............................................................................................................................. 39 Washington ....................................................................................................................... 39 West Virginia.................................................................................................................... 41 Wisconsin.......................................................................................................................... 41 Wyoming .......................................................................................................................... 41
References Law Reviews..................................................................................................................... 43 Other ................................................................................................................................. 45
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Introduction
Each year, the American Association of University Professors (AAUP) receives
many inquiries about the legal status of faculty handbooks. To respond to some
common inquiries, the Association’s legal office prepared this overview of
faculty handbook decisions.1 It is arranged by state and includes decisions of
which the Association is aware and that it considers most helpful. The guide
provides background to help professors, administrators, and their lawyers analyze
whether the provisions of a faculty handbook are enforceable as a contract.
References to law review articles and other general sources appear at the end of
the guide. This compilation is not exhaustive. It excludes scores of cases
addressing the enforcement of employee or personnel manuals and handbooks
outside higher education, while including a few non-higher education cases
where the issues raised in such cases are relevant in a higher education setting.
This compilation also includes a few cases that involve personnel manuals and
handbooks applicable to college and university staff because these cases touch on
issues relevant to the status of faculty handbooks. This guide is not intended as
legal advice. Rather, the AAUP intends this guide to provide general legal
information about this developing area of the law. The Association urges you to
consult counsel in your state experienced in higher education or employment law.
Should you require assistance locating appropriate counsel, the AAUP may be
able to refer you to a local attorney; please e-mail [email protected] for
assistance.
1The AAUP intends to update this guide on an annual basis, and we would appreciate comments and suggestions about ways to make the publication as user-friendly as possible. We also ask that you forward to us additional relevant cases and their citations for inclusion in next year’s edition. Please contact the AAUP Office of Staff Counsel, at [email protected].
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BACKGROUND
Most employees, including university support staff who are not unionized, are
“employees-at-will.” In most states, the at-will employment rule is that either
party—the employer or the employee—may terminate the employment
relationship virtually at any time and for any reason or no reason at all (but not
based upon unlawful discriminatory motivations, of course).
A faculty member, however, almost always has a contract or letter of
appointment. Courts are often asked to decide whether a faculty handbook—
which includes policies, rules, and procedures under which professors work—
also establishes a contractual relationship between a professor and an institution.
The issue usually arises in the context of a breach-of-contract claim, and the
question is whether the faculty handbook is part of the employment contract
between the professor and the institution. A majority of states have held that
contractual terms can at times be implied from communications such as oral
assurances, pre-employment statements, or handbooks (Chagares 1989). Of
these, handbooks are the most common source of implied contractual terms
(Chagares 1989).
Faculty handbook cases raise many issues, including:
• Must a faculty handbook be expressly incorporated by reference into
a professor’s letter of appointment for the handbook terms to be
enforceable?
• May a faculty handbook become part of a professor’s employment
contract based on the university’s established practices even when no
express reference to the handbook exists in that contract?
• Is a faculty handbook a unilateral policy statement subject to change
at the discretion of the institution?
• Must a faculty handbook meet the legal contract requirements of
offer, acceptance, and consideration before the handbook is
enforceable as an employment contract? (Consideration is a legal
term referring to something of value given in exchange for a
promise.)
• What is the legal effect of a disclaimer in a faculty handbook in
which a college or university disavows any intent to be contractually
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bound by the contents?
• Do faculty members at public institutions have a constitutionally
protected due process and property interest in continued employment
based on a handbook’s provisions? (Property interest has been
defined by the U.S. Supreme Court as follows: “A person’s interest
in a benefit is a ‘property’ interest for due process purposes if there .
. . are rules or mutually explicit understandings that support his claim
of entitlement to the benefit and that he may invoke at a hearing.”
Perry v. Sindermann, 408 U.S. 593, 601 (1972).)
• When a university or college updates its faculty handbook or merges
with another institution, does the new or the old handbook control a
professor’s claim?
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Terminology
Nonlawyers may wish to know that the term aff’d mem. means that an appeals
court affirmed a trial court’s decision without writing an opinion. The term reh’g
denied indicates that a court has declined to rehear a case, and the term cert.
denied means that a state’s highest court or the United States Supreme Court
declined to review an appellate court’s decision. The term en banc means that all
of the judges of a court – e.g., all of the judges of the Fifth District Court of
Appeals, not just a panel of judges – heard a case, a practice sometimes followed
in important cases in which an earlier decision merits reconsideration. The term
dicta means the part of a judicial opinion which is editorializing on the part of the
judge; it does not form part of the basis for the opinion, and it may not be cited as
precedent. The term per curiam indicates that the opinion is delivered “by the
court” rather than by an individual justice. Per curiam decisions are often, though
not always, shorter decisions that deal with issues the court views as
noncontroversial. The term “Not recommended for publication” refers to cases
the court did not intend for publication. The court limits the use of these cases as
precedents for future cases, so please check your local court rules before relying
on these cases. Readers should check, or “Shepardize,” cases listed in this guide
for their current status before relying on them. The AAUP updates this list of
cases only once a year.
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Case Summaries and Citations
ALABAMA
House v. Jefferson State Community College, 2005 WL 327355 (Ala. Feb. 11,
2005). A former instructor sued a college, claiming that his employment was
terminated without a hearing in violation of his employment contract. The
instructor’s contract stated that he was employed on probationary status pursuant
to a specific provision in the college’s policy manual. According to the manual, a
probationary employee under contract who is terminated within the period of the
contract is entitled to a hearing. The court held that the instructor’s letter of
appointment clearly incorporated this provision of the manual, and the instructor
was therefore entitled to a hearing.
Boyett v. Troy State University at Montgomery, 971 F. Supp. 1403 (M.D.
Ala. 1997), aff’d, 142 F.3d 1284 (11th Cir. 1998). A list of reasons for
nonreappointment of nontenured professors provided in a faculty handbook,
explicitly identified as a partial list and clearly distinguishing tenured and
nontenured professors, cannot serve as the basis for a “legitimate expectation that
reappointment could be denied only for cause.”
Anderson-Free v. Steptoe, 970 F. Supp. 945 (M.D. Ala. 1997). For an
employee handbook to be incorporated as part of a contract, it must satisfy three
conditions: (1) “the language . . . must be specific enough to constitute an offer”;
(2) “the handbook must have been issued to the employee”; and (3) “the
employee must have accepted the offer by retaining employment after having
been issued the handbook.”
Shuford v. Alabama State Board of Education, 978 F. Supp. 1008 (M.D. Ala.
1997). In a case involving a university president, the court ruled that to determine
whether the language of a handbook is sufficient to create a property interest in
continued employment, it would look to “substantive restrictions on the
employer’s discretion to discharge, rather than on the procedural protections
provided.” A sixty-day notice requirement, which limited the timing of
employment termination rather than the decision to terminate, was a procedural
rather than a substantive restriction, and therefore did not constitute a property
interest in continued employment.
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ALASKA
Zuelsdorf v. University of Alaska-Fairbanks, 794 P.2d 932 (Alaska 1990). A
policy manual was expressly incorporated in an employment contract between a
university and two nontenured professors through explicit reference in letters of
appointment. Once the deadline established in the faculty manual for sending a
notice of nonretention for the school year had passed, the professors had a vested
right in employment for that year, and that right could not be changed unilaterally
by the university’s subsequent amendment of the manual to provide for a later
deadline.
ARIZONA
University of Arizona v. County of Pima, 722 P.2d 352 (Ariz. App. 1986). The
university appointed a nontenured faculty member for a period of four years.
After one year the university attempted to dismiss the faculty member by relying
on the university’s policy manual, which stated that faculty members cannot be
appointed for a period greater than one year. The court held that when an
administration enters into a contractual relationship with a faculty member,
separate from the university’s policy manual, the university cannot rely on the
provisions of the policy manual to break that contract.
Smith v. University of Arizona, 672 P.2d 187 (Ariz. App. 1983). An assistant
professor sought and was denied a tenure review process at the end of six years
of service as specified by the faculty handbook. The court determined that the
university was required to conduct a tenure review process in compliance with
the faculty manual.
ARKANSAS
Doe ex rel. Doe v. Little Rock School District, 380 F. 3d 349 (8th Cir. 2004). The
court stated that a student handbook may not be considered a binding contract
between a school and a student, but opined in dicta that an employee handbook
may be enforceable as a contract under traditional contract principles.
Casteel v. Clear Channel Broadcasting, Inc., 254 F. Supp. 2d 1081 (W.D.
Ark. 2003). Former employees sued a company and the company moved to stay
action and compel arbitration. The employees had received a “New Hire Guide”
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containing a six-page Arbitration Agreement. The court held that the guide did
not constitute a binding contract to arbitrate, even for employees who had signed
an acknowledgment of receipt of the guide.
Brown v. Pepsico, 844 F. Supp. 517 (W.D. Ark. 1994). Following his
termination, an employee filed a breach-of-contract claim in which he stated that
the company handbook created a contractual employment relationship with his
employer that could be terminated only for cause. The district court, relying on
the employee handbook, determined that the employees were employed at will.
The manual specifically provided that “the employee may quit at any time” and
that “the company may terminate an employee, with or without cause.”
Crain Industries Inc. v. Cass, 810 S.W.2d 910 (Ark. 1991). A business laid
off six senior employees while retaining several other employees who had shorter
lengths of service with the company. The senior employees claimed a breach of
contract based on a provision in the employee handbook stating that if it became
necessary to reduce the number of employees, employees would be laid off on
the basis of least seniority. The company claimed that the employee handbook
did not constitute a legally binding contract. The Supreme Court of Arkansas
disagreed, finding that when an employer makes definite statements about what
its conduct will be, an employee has a contractual right to expect the employer to
perform as promised.
CALIFORNIA
Gutkin v. University of Southern California, 125 Cal. Rptr. 2d 115 (Cal. App.
2002). For claims involving the revocation of tenure or tort claims against a
private university, faculty members must exhaust all possible administrative
remedies before a California court will hear their case.
Slatkin v. University of Redlands, 106 Cal. Rptr. 2d 480 (Cal. App. 2001).
Faculty members bringing claims of discrimination against colleges or
universities in the State of California do not have to exhaust all administrative
remedies before a California court will hear their case.
Pomona College v. Superior Court, 53 Cal. Rptr. 2d 662 (Cal. App. 1996).
Under California law, in cases not involving discrimination, administrative (not
judicial) review was the exclusive remedy available to a nontenured professor
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who alleged procedural defects in a college’s tenure review and grievance
procedure and alleged that the process was governed by the college handbook.
COLORADO
Darr v. Town of Telluride, 495 F.3d 1243 (10th Cir. 2007). When town
unilaterally changed employment policy from one granting pre-termination
notice and hearing to policy holding that employment was terminable at will,
court rejected terminated employee's contract claim based on prior manual and
policies and held that newly-adopted policies governed.
Hulen v. Yates, 322 F.3d 1229 (10th Cir. 2003). A tenured professor
possessed a property interest protected under the due process clause based upon
his contract with the state university and confirmed by the university’s customs
and practices. The parties agreed that the university’s faculty manual had
contractual force.
Johnson v. Colorado State Board of Agriculture and Colorado State
University, 15 P.3d 309 (Colo. App. 2000). The university’s faculty manual
contained a policy that called for the performance review of tenured faculty
members. Unsatisfactory performance reviews could lead to dismissal. In 1997
and 1998 a tenured faculty member received unsatisfactory reviews and was
dismissed. The tenured faculty member argued that the policy manual called for
performance review of tenured faculty members every five years and that his two
unsatisfactory reviews therefore occurred over too short a time period. The
university argued that the faculty manual called for tenured faculty members to
be reviewed on a yearly basis. The court stated that if a faculty manual, which the
court treated as an enforceable contract, contains an ambiguous policy, the court
will look to other indicators. The court looked to the intent of the policy and
found that the faculty manual called for performance review on a yearly basis.
Thornton v. Kaplan, 937 F. Supp. 1441 (D. Colo. 1996). Metropolitan State
College of Denver, which denied tenure to a professor, did not violate the
professor’s property interest in having his tenure application reviewed fairly and
in compliance with the school’s written policies and procedures because no
property interest is created by general criteria for awarding tenure and procedures
for tenure review. Rather, property interest would be attained only when a
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university’s “discretion is clearly limited so that the employee cannot be denied
employment unless specific conditions are met.”
Laubuch v. Bradley, 572 P.2d 824 (Colo. 1977). The language of the faculty
handbook at Colorado School of Mines reinforced the college’s contention that
the school had no tenure system in place. In addition, simple reliance on length of
service cannot support an interest in continued employment. “[L]ongevity of
employment per se, without additional supportive facts . . . [does not create] a
protectable interest to the individual.”
University of Colorado v. Silverman, 555 P.2d 1155 (Colo. 1976). A dean
conditioned retaining an untenured professor on two factors: the renewal of a
grant under which the professor was hired and a favorable recommendation by
the professor’s department. Both conditions were met, but the professor was not
retained. The court found that it was the professor’s responsibility to be aware of
a faculty handbook provision that stated that the board of regents made all faculty
appointments. The power to make appointments could not be delegated to the
dean, so the professor was not justified in relying on the dean’s statements.
CONNECTICUT
Neiman v. Yale University, 821 A.2d 1165 (Conn. 2004). A faculty member
challenged the denial of tenure in state court before exhausting the grievance
process provided for in the faculty handbook. The court ruled that the professor’s
failure to exhaust all internal remedies, as provided in the handbook, barred the
court from hearing the claim.
Fenn v. Yale University, 283 F. Supp. 2d 615 (D. Conn. 2003). The district
court held that the university’s patent policy, as stated in the faculty handbook,
was a valid and enforceable part of the professor’s employment contract. Though
the 1975 policy in the handbook had been amended during his employment, the
current policy was found to be part of the professor’s employment agreement
because the 1975 policy (and all subsequent policies) explicitly provided that the
university could revoke or amend the policy at any time.
Craine v. Trinity College, 791 A.2d 518 (Conn. 2002). The court upheld the
verdict for a professor on her breach-of-contract claim for denial of tenure. The
court noted that “a faculty manual that sets forth terms of employment may be
considered a binding employment contract.” The defendant’s standards and
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requirements for tenure review were set forth in the faculty handbook, and
required that the college “indicate as clearly as possible those areas to which a
candidate needs to address special attention” when conducting her second
reappointment review. The court found that the college’s failure to indicate
adequately to the candidate trouble areas during this second review, before the
denial of tenure, constituted breach of the contract as set forth in the faculty
handbook.
Franco v. Yale University, 161 F. Supp.2d 133 (D. Conn. 2001). A surgeon
brought a case against Yale University for salary reductions, failure to reappoint
him, and his exclusion from private physicians’ groups within the department.
The university argued, in part, that the claims should be barred by the surgeon’s
failure to follow the internal review provisions specified in the faculty handbook.
The plaintiff explicitly eschewed, however, any claim that he had a contract
based upon the handbook. The court concluded that if the doctor should, at trial,
seek damages based upon the failure to reappoint him or reductions in salary
while he was employed, the failure to exhaust the internal remedies in the
handbook would bar such claims. However, the court also concluded that other
aspects of the complaint, having to do with issues not covered by the internal
review process, were not barred by a failure to follow the handbook procedures.
DELAWARE
Motley v. Delaware State University, 2004 WL 1588317 (Del. Super. May 28,
2004) (unpublished). This case involved a dispute over payments owed for leave
time accrued by Motley, former vice president of student affairs and special
assistant to the president. Motley had entered into annual employment contracts
with the university that provided that she was a professional employee, and thus
her employment was governed by the Professional Employee Handbook.
Therefore, the court held that the payments for accrued leave should be based
upon the terms set out in the handbook.
Henry v. Delaware Law School of Widener University, Inc., No. A-8837,
1998 WL 15897 (Del. Ch. Jan. 12, 1998) (unpublished). A university did not
breach a professor’s employment contract, which incorporated by reference the
university’s faculty manual, when it denied the professor tenure. Despite the
professor’s claim that the review process was “sufficiently tainted,” the court
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found that the procedures used in the initial tenure decision and the internal
review process were substantially followed.
DISTRICT OF COLUMBIA
Clampitt v. American University, 957 A.2d 23 (D.C. 2008). A private university's
obsolete employment manual did not create an implied contract of employment
between the university and the employee. The manual had not been distributed
for years and was used only for guidance. Moreover, there was no evidence that
the employee received the manual, or relied on or bargained for policies set forth
in the manual.
Howard University v. Lacy, 828 A.2d 733 (D.C. 2003), reh’g granted in part,
833 A.2d 991 (D.C. 2003). The court found that the fact that the first page of the
faculty handbook stated “[t]his document is not to be construed as a contract”
and reserved discretion in the university to terminate employees did not
automatically mean the handbook was not an enforceable contract. At the same
time, the fact that another court had found the same handbook to be an
enforceable contract did not stop the university from arguing that it did not
constitute an enforceable contract in this case. The court remanded the case to the
lower court to determine whether or not the faculty handbook was an enforceable
contract.
Kakaes v. George Washington University, 790 A.2d 581 (D.C. 2002). The
faculty handbook constituted a contract between the faculty member and
university. The court found that failure to give timely notice of denial of tenure
was a breach of that contract, but refused to grant tenure as a remedy. Instead, the
court upheld the lower court’s grant of $75,000 in damages and costs.
Paul v. Howard, 754 A.2d 297 (D.C. 2000). A faculty handbook published in
1980 and still in effect at the time of application for tenure was a binding contract
of employment for a tenure decision. A second tenure application submitted after
the publication of a new faculty handbook in 1993 was governed by the new
faculty handbook, as a new contract of employment. The university’s denial of
tenure both times was appropriate under both handbooks, and the professor was
not entitled to de facto tenure under either handbook despite seven years of
service in a tenure-track position and one additional year in a non-tenure-track
lecturer position.
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Breiner-Sanders v. Georgetown University, 118 F. Supp. 2d 1 (D.D.C. 1999).
The court held that a faculty handbook “defines the rights and obligations of the
employee and employer, and is a contract enforceable by the courts” (quoting
McConnell v. Howard University (below)). A professor who alleged that the
handbook’s provisions on allocation of office space and fair treatment of faculty
had not been properly followed was not entitled to summary judgment because
there were unresolved factual questions.
McConnell v. Howard University, 818 F.2d 58 (D.C. Cir. 1987). District of
Columbia law provides that an employee handbook is a contract enforceable by
the courts and, therefore, a private university’s power to terminate the
appointment of a tenured faculty member is subject to faculty handbook
procedures and provisions.
Morgan v. American University, 534 A.2d 323 (D.C. 1987). A section of the
faculty handbook, which provided for the dismissal of a professor upon showing
of adequate cause, did not abrogate the university’s right to rescind a contract for
material misrepresentation when a full-time faculty member failed to disclose
that he simultaneously held a full-time position at another university.
Howard University v. Best, 484 A.2d 958 (D.C. 1984). A university breached
its contract with a faculty member by failing to give notice of nonrenewal as
required by the faculty handbook.
Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969). The
university was in breach of contract by not providing nontenured faculty
members adequate notice as defined by its faculty handbook. Prior conduct had
created protectable interests in faculty retention and review. “Contracts are
written, and to be read, by reference to the norms of conduct and expectations
founded upon them. This is especially true of contracts in and among a
community of scholars, which is what a university is. The readings of the
marketplace are not invariably apt in this non-commercial context.”
FLORIDA
Williams v. Florida Memorial College, 453 So.2d 541 (Fla. App. 1984). Because
only notice of intention to reappoint was specified by the faculty handbook, a
nontenured professor who was not given one year’s notice of nonreappointment
did not have a breach-of-contract claim.
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GEORGIA
Shah v. Clark Atlanta University, 1999 U.S. Dist. LEXIS 22077 (N.D. Ga. July
21, 1999). The court held that a professor’s “reliance on the Faculty Handbook to
support a breach-of-contract claim is . . . misplaced” because “an employer’s
failure to follow termination procedures in a personnel manual is not actionable
under Georgia law.” In doing so, the court also noted that the faculty handbook
contained a specific provision stating that it shall not be construed as a legally
binding contract, and that the professor’s employment contract “did not explicitly
incorporate the Faculty Handbook.”
Gray v. Board of Regents of University System of Georgia, 150 F.3d 1347
(11th Cir. 1998), cert. denied, 526 U.S. 1065 (1999). The court rejected a
professor’s contention that “mere presence” as a faculty member beyond a seven-
year probationary period was sufficient for the award of tenure and its
protections. A professor’s property interest in employment was not secured by
successive, separate one-year contracts. The claim that a handbook provides for
the automatic award of tenure with the offer of an eighth-year contract was
rejected. Neither a plain reading of handbook provisions nor preexisting practice
could support a claim for tenure and property interest in continued employment.
Savannah College of Art and Design v. Nulph, 460 S.E.2d 792 (Ga. 1995). A
college and a professor, who was released midyear during a one-year
employment contract, agreed that the faculty handbook, which provided grounds
and procedures for termination, was incorporated into the professor’s
employment contract. However, the college did not breach that contract in failing
to follow proper procedures for dismissing the professor: “If the employer were
justified in terminating the employee under the contract, then the termination
would have occurred even if the employer had followed the proper procedures.
Thus, procedural flaws in the manner in which the termination was carried out
will not warrant damages to compensate for losses that naturally result from a
justified termination.”
Moffie v. Oglethorpe University, Inc., 367 S.E.2d 112 (Ga. App. 1988). A
faculty handbook that was incorporated by reference in a faculty member’s half-
page employment contract, and of which the tenure-track faculty member was
aware, formed part of an employment contract; however, the university did not
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breach that contract by failing to provide supportive data for tenure denial
because no damages arise from such failure: “all that is lost by such a failure is
[the] satisfaction of [the professor’s] curiosity.”
HAWAII
Shoppe v. Gucci America, Inc., 14 P.3d 1049 (2000). A non-academic employee
sued her former employer on the ground that her discharge violated the employee
handbook because she was given no warnings before her discharge. The
Supreme Court of Hawaii held in favor of the employer on appeal, stating
Hawaii’s rule that a handbook is enforceable only where it modifies the
employment-at-will presumption “and, by its language or . . . [the employer’s]
actions, encourages [the employee’s] reliance thereon.”
University of Hawaii v. University of Hawaii Professional Assembly, 659
P.2d 732 (Haw. 1983). A tenure-track professor charged that a university
improperly denied him tenure. The university had relied on the tenure provisions
of the faculty handbook, which stated that a Ph.D. was required, instead of
relying on the professor’s department’s tenure criteria, which did not require a
Ph.D. The court found that the faculty handbook criteria governed because they
had been established by the board of regents.
Abramson v. Board of Regents, 548 P.2d 253 (Haw. 1976). A public
university handbook lacked the force of law because there was no showing of
compliance with state rule-making procedures. But the published tenure policy of
an educational institution may be incorporated by reference into an employment
contract of a probationary faculty member. In the absence of a written or
unwritten policy creating the expectation of employment, an instructor had no
property interest in continued employment.
IDAHO
Olson v. Idaho State University, 868 P.2d 505 (Idaho App. 1994). Because the
conferral of tenure, as provided by the faculty handbook, required a “positive
action of approval” from the board and president of the institution, an untenured
professor who had been recommended for tenure at every level and then denied
by the president could not avail himself of the due process protections associated
with tenure.
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Hughes v. Idaho State University, 835 P.2d 670 (Idaho App. 1992). A
nontenured professor’s property interest in continued employment was not
violated where the professor was not offered an additional contract; the professor
had been hired under a series of one-year contracts rather than a one-year
contract that was “continued year after year,” as the professor argued. Various
handbook provisions supported that conclusion.
Loebeck v. Idaho State Board of Education, 530 P.2d 1149 (Idaho 1975). A
grant of tenure at Idaho State University required an affirmative act by the
institution, as specified by the faculty handbook and letter of appointment.
ILLINOIS
Ross v. May Company, 880 N.E.2d 210 (Ill. App. Ct. 2007). Plaintiff sued his
employer on the ground that it breached the employee handbook by discharging
him without following the procedures of the handbook in existence when he was
hired. The Illinois Court of Appeals affirmed the lower court’s finding that the
original handbook was an enforceable contract. The court also held that the
employer had not legitimately altered the terms of the contract when it changed
the employee handbook because it offered no additional consideration to the
employee in exchange for the protections it removed.
Green v. Trinity International University, 801 N.E.2d 1208 (Ill. App. 2003).
To state a cause of action for breach of contract arising from failure to comply
with the faculty handbook, a professor must allege facts demonstrating that the
handbook created binding contractual rights. The following requirements must be
met: (1) the language of the policy statement must contain a promise clear
enough that the faculty member would reasonably believe that an offer was
made, (2) the statement must be disseminated to the faculty member in such a
manner that he or she is aware of its contents and reasonably believes it to be an
offer, and (3) the faculty member must accept the offer by commencing or
continuing to work after learning of the policy statement. The professor claimed
that the university’s breach arose from its failure to notify him of his dismissal in
a timely manner, as required by the handbook. The court held, however, that the
handbook provisions did not apply to the university’s decision to terminate. The
professor had failed to allege any facts pertaining to the handbook’s
12
incorporation into his letter of appointment, and thus, he had no basis to assume
that the handbook created binding contractual rights.
Hentosh v. Herman M. Finch University of Health Sciences, 734 N.E.2d 125
(Ill. App.), appeal denied, 742 N.E.2d 327 (Ill. 2000). Professors submitted their
tenure applications for review, but the tenure review was never completed
because the department decided to terminate their appointments. Both sides
agreed that the faculty handbook was part of their contracts. The court found that
the faculty handbook modified the at-will relationship. Therefore, the untenured
professors were entitled to tenure review. Furthermore, based on the university
bylaws and faculty handbook, once the tenure-review process was begun, the
professors had the right to have it completed.
Kirschenbaum v. Northwestern University, 728 N.E.2d 752 (Ill. App. 2000).
A medical school faculty handbook, along with a letter of appointment, clearly
identified Northwestern University’s “zero-based” salary obligation to a faculty
member. Because the terms of the contact were “unambiguous,” Northwestern
did not breach an express or implied contract with the faculty member.
Gray v. Mundelein College, 695 N.E.2d 1379 (Ill. App. 1998). Under
Mundelein College’s faculty manual, the appointments of tenured professors
could be terminated for a limited number of reasons, including financial
exigency. Facing financial problems, Mundelein “affiliated” with Loyola
University, an eventuality not addressed by the handbook. The court determined
that the precise terms of the handbook were operative, and because no financial
crisis had been announced as stipulated in the guidelines, the tenured professors’
rights were not extinguished by affiliation. See also Gray v. Loyola University of
Chicago, 652 N.E.2d 1306 (Ill. App. 1995).
Jacobs v. Mundelein College, Inc., 628 N.E.2d 201 (Ill. App. 1993). A
private college’s decision not to renew a faculty member’s contract failed to
breach the faculty handbook because the handbook’s controlling provision did
not require the administration to defer to or even accept the recommendations of
department chairpersons or faculty members on the issue of contract renewal. For
a handbook to become part of an employment contract, it must (1) “contain a
promise clear enough that an employee would reasonably believe an offer has
been made”; (2) “be disseminated to employee in such a manner that he is aware
of its contents and reasonably believes it to be an offer”; and (3) “be accepted by
13
the employee, meaning employee must commence or continue to work after
learning of policy statement.”
Arneson v. Board of Trustees, McKendree College, 569 N.E.2d 252 (Ill. App.
1991). A college could not reject a manual as part of an employment contract
because, although the manual was never adopted by the college, professors were
made to rely on the manual as part of the “rules and regulations” defining the
relationship between the faculty and the college.
INDIANA
Peters v. Gilead Sciences, 533 F.3d 594 (7th Cir. 2008). Company handbook’s
promise of twelve weeks of leave created enforceable contract and prohibited
company from replacing employee during leave of fewer than twelve weeks.
Lim v. The Trustees of Indiana University, 2001 U.S. Dist. LEXIS 24822
(S.D. Ind. Dec. 4, 2001), aff’d, 297 F.3d 575 (7th Cir. 2002). A professor brought
a number of claims against the university for having denied her tenure, including
breach of contract based on her faculty handbook. For the breach-of-contract
claim to survive, the professor had to establish that the faculty handbook
“represents a contractual commitment by the University.” The court noted that
both the 1992 faculty handbook, under which Dr. Lim was appointed, and the
1997 handbook, which was in effect when she was denied tenure, contained the
“identical disclaimer on the first page,” which read: “Statements and policies in
this Handbook do not create a contract and do not create any legal rights.” The
court held that the “clear and forthright disclaimer is ‘a complete defense to a suit
for breach of contract based [up]on an employee handbook.’” Accordingly, the
faculty handbook failed to constitute an enforceable contract. The court observed
that the Colburn case, discussed below, failed to support the “conclusion that the
Handbook constitutes a legally binding contract for definite-term employees.
Any bolder language about how the appointment papers might have incorporated
certain parts of the Handbook as a contractual commitment is merely dicta.”
McElroy v. Saint Meinrad School of Theology, et al., 713 N.E.2d 334 (Ind.
2000). A tenured professor, whose employment was terminated after she had
signed an open letter to the pope advocating the ordination of women, brought a
breach-of-contract action against a Catholic institution. The court held that
ambiguity in the letter of appointment showed the intent of both parties to
14
incorporate additional terms, including the faculty handbook, which allowed for
termination for serious deficiency in performance of duties.
Colburn v. Trustees of Indiana University, 739 F. Supp. 1268 (S.D. Ind.
1990), aff’d, 973 F.2d 581 (7th Cir. 1992). A faculty handbook provided no
definite terms of employment, and department bylaws stated that professors
could be dismissed only for cause during the academic year for which they had
been appointed. Therefore, professors who had one-year employment contracts
could not prevail on their dismissal claims when the university failed to reappoint
them, since the professors were not dismissed, merely not reappointed.
IOWA
King v. Hawkeye Community College, No. C98-2004, 2000 U.S. Dist. LEXIS
1695 (N.D. Iowa Jan. 3, 2000) (unpublished). The court stated that a handbook
may constitute an offer by a college that is accepted by a professor if the
professor could reasonably believe that he or she had been guaranteed protections
by the college. The court applied the three-part test stated in Taggart v. Drake
University (below) and looked at the following criteria to evaluate whether it was
reasonable for the professor to rely on the handbook: “(1) Is the handbook in
general and the progressive disciplinary procedures in particular mere guidelines
or a statement of policy, or are they directives?; (2) Is the language of the
disciplinary procedures detailed and definite or general and vague?; (3) Does the
employer have the power to alter the procedures at will or are they invariable?”
The court stated that “if the language is vague, creates procedural guidelines, and
reserves the right for employers to change procedures, the handbook does not
create a unilateral contract.” Based on this analysis, the court held the handbook
to be part of the professor’s contract. Therefore, the college breached the contract
when the handbook stated that the professor was entitled to six months of unpaid
leave and a three-month review to determine if he was fit to return to work, and
the college provided neither.
University of Dubuque v. Faculty Assembly, et al., No. EQCV090784 (Iowa
Dist. 1999) (unpublished). The court concluded that the faculty handbook
constituted an enforceable employment contract because (1) “letters of
appointment and the Handbook expressly incorporate each other by reference”;
(2) the handbook clearly states that its “terms shall be legally binding and
15
enforceable”; (3) the terms of the handbook “govern the continuation and
termination of the employment contract and supersede letters of appointment in
the event of a conflict”; and (4) “surrounding facts and circumstances also
indicate that the Handbook terms are part and parcel of the employment
contracts.”
Taggart v. Drake University, 549 N.W.2d 796 (Iowa 1996). The university
did not breach an employment contract with a faculty member who was denied
tenure. A faculty handbook may give rise to an enforceable contract under three
conditions: “(1) document must be sufficiently definite in its terms to create an
offer; (2) document must be communicated to and accepted by employee so as to
create acceptance; and (3) employee must continue working, so as to provide
consideration.” While the procedural rights in the handbook were sufficiently
specific to create a contract, the university followed procedures adequately to
deny the professor’s breach-of-contract claim.
Mumford v. Godfried, 52 F.3d 756 (8th Cir. 1995). A probationary professor
did not have a property interest in continued employment at Iowa State
University and therefore had no constitutional right to due process. While the
faculty handbook procedures were incorporated into his employment contract, “a
contractual right to have certain procedures followed does not create a property
interest in procedures themselves.”
KANSAS
Lesourd v. Washburn University of Topeka, No. 86-2324-S, 1987 U.S. Dist.
LEXIS 9367 (D. Kan. Sept. 22, 1987) (unpublished). A professor’s contract
stated that her appointment was subject to the policies of the faculty handbook.
Therefore, the department chair’s discussion with a nontenured professor
concerning her teaching assignment for the next year did not preclude the
university from terminating her employment because the faculty handbook stated
that all faculty contracts were “subject to final confirmation by approval of the
budget after final hearing.” The department chair did not have authority to enter
into a binding contract with the professor.
16
KENTUCKY
Landrum v. Lindsey Wilson College, 2004 WL 362317 (Ky. App. Feb. 7, 2004).
A professor’s contract incorporated by reference the faculty handbook. The
handbook provided that a faculty member under a multi-year contract could be
dismissed with one-year notice and majority consent of the division chairs or for
misconduct or other specified conditions. During the professor’s three-year
contract, the college inserted a provision in his contract allowing the college to
terminate his appointment for any reason as long as thirty days’ notice was
provided. The court held that when an employment contract is for a specified
period of time, the employer cannot unilaterally alter the terms of the contract
during that time. Therefore, the college would not have been able to terminate the
professor’s appointment without cause during the term of his contract. However,
he was not reappointed at the end of the contract, so the court did not have to
decide whether the faculty handbook or the contract applied.
Landrum v. Board of Regents, No. 92-6231, 1994 U.S. App. LEXIS 2329
(6th Cir. Feb. 8, 1994) (unpublished). An untenured professor was employed
under a consent decree from previous litigation. The settlement provided that the
university was to employ the professor “through the academic year when he
reaches the age of sixty-five years, according to the provisions of the University
Faculty Handbook.” Although the handbook was later updated to ensure
employment until age seventy, the court found the consent decree was based on
the earlier handbook. Therefore, the university did not violate the professor’s
rights when it refused to employ him past age sixty-five.
Blank v. Peers, No. 92-5687, 1993 U.S. App. LEXIS 8038 (6th Cir. Apr. 7,
1993), cert. denied, 510 U.S. 883 (1993) (not recommended for publication). A
university failed to follow grievance procedures outlined in the faculty handbook
in terminating a tenured professor’s appointment. Nevertheless, this “technical”
violation of the handbook requirements did not violate constitutional due process
because the hearing actually accorded the professor was meaningful.
LOUISIANA
Stanton v. Tulane University, 777 So.2d 1242 (La. App.), writ denied, No. 2001-
C-0391, 2001 La. LEXIS 1410 (La. Apr. 12, 2001). A nontenured assistant
professor claimed his employment was terminated in violation of the university’s
17
faculty handbook. The court found that the handbook was not part of the
contract, because “Louisiana recognizes a presumption favoring at-will
employment,” and the handbook explicitly said that it was a “general guide.” The
court stated that “implicit in the status of nontenured/probationary employee is
the assumption that protection against arbitrary or repressive dismissal is absent,
i.e., the doctrine of employment at will prevails.”
Fairbanks v. Tulane, 731 So.2d 983 (La. App. 1999). A deceased faculty
member’s son sued a university for tuition-waiver benefits identified in the
faculty handbook as part of a faculty member’s compensation. The court
concluded that the university was not entitled to summary judgment, because the
facts concerning handbook provisions still needed to be resolved. Commenting
on previous court decisions concerning faculty handbooks, the court wrote that
“[w]e did not hold that a provision of the faculty handbook could never become
an enforceable obligation.” Under conditions where provisions of a handbook are
designed to induce an employee (e.g., in the form of additional compensation), an
employee may “acquire a vested property right.”
Schwarz v. Administrators of Tulane Educational Fund, 699 So.2d 895 (La.
App. 1997). The failure of a private university to grant tenure to a professor did
not breach any employment contract because the tenure procedure set forth in the
faculty handbook did not constitute a mutual agreement necessary for a
contractual obligation; “a grievance procedure in a handbook is a unilateral
expression of company policy” rather than “a meeting of the minds” for the
purposes of contract law.
Schalow v. Loyola University of New Orleans, 646 So.2d 502 (La. App.
1994). A private university was entitled to deny reappointment to a probationary
professor without cause after the expiration of his annual contract. Some faculty
handbook provisions were specifically incorporated by reference into the
professor’s employment contract, and these provisions indicated that nontenured
faculty members were probationary employees—in contrast with tenured faculty,
who could be dismissed only for cause.
Marson v. Northwestern State University, 607 So.2d 1093 (La. App. 1992).
“[P]olicy handbooks do not constitute a part of the contract per se” and,
therefore, a faculty handbook did not form part of a nontenured faculty member’s
18
contract. Moreover, the university followed the policy guidelines of the
handbook.
MAINE
Earnhardt v. University of New England, No. 95-229-P-H, 1996 U.S. Dist.
LEXIS 10030 (D. Me. July 3, 1996) (unpublished). A faculty handbook was an
enforceable contract because a tenured professor’s appointment letter expressly
incorporated it.
Knowles v. Unity College, 429 A.2d 220 (Me. Sup. 1981). An untenured
professor could not rely on AAUP guidelines when the faculty handbook and
accreditation self-study both clearly stated that the university had no tenure
policy. No tenure terms were included in the professor’s letter of appointment,
nor did the appointment letter reference the faculty handbook.
MARYLAND
University of Baltimore v. Iz, 716 A.2d 1107 (Md. Spec. App. 1998). A
nontenured faculty member challenged the university’s decision to deny him
tenure. The court ruled that the professor received the tenure review provided by
the contract. However, “not all personnel policies contained in employee manuals
create enforceable contractual rights.” For example, the court ruled that general
statements of policy would not qualify as enforceable contractual rights.
Marriott v. Cole, 694 A.2d 123 (Md. Spec. App.), cert. denied, 700 A.2d
1215 (Md. 1997). A seventh consecutive one-year contract issued to a faculty
member at Morgan State University did not entitle the professor to tenure under
the faculty handbook in effect at the time of her hiring, absent express
incorporation in the contract of regulations in effect on her date of hire. Instead,
the employment contract incorporated revisions of regulations that were made
subsequent to her date of hire, under which the professor was permanently
ineligible for tenure.
Johns Hopkins University v. Ritter, 689 A.2d 91 (Md. Spec. App. 1996), cert.
denied, 694 A.2d 950 (Md. 1997). A university properly terminated the
appointments of two professors despite statements of the university department
director, because the tenure process is entirely governed by the faculty handbook,
and the director had no authority to modify the handbook’s tenure procedure.
19
Although the director could have created the impression that the two professors
were to start their employment as tenured full professors, “when a tenure process
is established in writing and is communicated to a prospective appointee, a
subordinate official may not circumvent that process and bind college to a tenure
arrangement.”
Elliott v. Board of Trustees of Montgomery County Community College, 655
A.2d 46 (Md. Spec. App. 1995). A disclaimer in a community college’s new
employee handbook purported to change employee contracts that were implied to
continue unless good cause existed for termination to at-will contracts. However,
the disclaimer was not “conspicuous.” Moreover, a two-page memorandum
accompanying the new manual “mute[d] the effectiveness of disclaimer” by
indicating that the revision was designed to “make [the handbook] easier to use”
and failed to point out that the new manual contained the disclaimer.
Nonetheless, the employer would be free to modify unilaterally a contract
previously established with employees as part of an employee handbook as long
as the college provides “reasonable,” not necessarily “actual,” notification.
Foster v. Tandy Corp., 828 F.2d 184 (4th Cir. 1987). The employee, a retail
sales clerk, claimed that his employer breached its contract with him when it did
not follow the four-step disciplinary process outlined in the employee handbook
before he was discharged. The court held that the language of the handbook was
not mandatory and agreed with the employer that not all statements in personnel
handbooks were enforceable contracts.
MASSACHUSETTS
Berkowitz v. President & Fellows of Harvard College, 789 N.E.2d 575 (Mass.
App. 2003). A tenure-track professor alleged that the university failed to follow
grievance and tenure procedures in the faculty handbook. In addressing the
professor’s claims, the court treated the handbook as a contract. The court wrote
that interpretation of a university contract should be undertaken using two
guiding principles. The first principle is the standard of reasonable expectation –
that is, what meaning the university should expect the professor to give to the
contract. The second principle is that courts should be wary of interfering with
academic decisions of private universities, unless they violate the reasonable
20
expectation of the parties or the university acted in an arbitrary and capricious
manner. The court granted the university’s motion to dismiss the complaint.
Tuttle v. Brandeis University, 2002 WL 202470 (Mass. Super. Feb. 4, 2002)
(unpublished). “Under appropriate circumstances, promises contained in a
personnel handbook, like the Faculty Handbook, can be binding on an employer
and effectively become terms of an employment contract.” The court held that if
an employee reasonably believes his employer was offering to extend the terms
of the contract through the manual, the terms of the manual may become
incorporated into the employment contract. Consequently, the terms governing
tenure may be implied in the faculty member’s employment contract and the
faculty member has a cause of action for breach of contract if the university fails
to follow such procedures.
Motzkin v. Trustees of Boston University, 938 F. Supp. 983 (D. Mass. 1996).
A university’s alleged failure to follow certain procedures delineated in the
faculty handbook, which the parties agreed was incorporated into a professor’s
employment contract, was immaterial to the professor’s breach-of-contract claim
“since the outcome of a hearing conducted in a manner that [complainant] would
deem ‘procedurally proper’ would be the same,” given that the professor
conceded that the university had the right to terminate his employment for cause
and he admitted that he was unfit to teach.
Harris v. Board of Trustees of State Colleges, 542 N.E.2d 261 (Mass. 1989).
A college properly dismissed a tenured faculty member as “unfit” under the
provisions of a college policy handbook that allowed discharge of tenured
professors for “just cause.”
Goldhor v. Hampshire College, 521 N.E.2d 1381 (Mass. App. 1988). A
college administrator and faculty member was dismissed by the president
because of “extenuating” circumstances. The administrator’s handbook provided
for specific employment termination procedures except in “extenuating”
circumstances. The court concluded that the college’s use of “extenuating”
circumstances as justification for termination was an affirmative defense and,
therefore, the “college must shoulder the burden of proof.”
21
MICHIGAN
Marwil v. Baker, 499 F. Supp. 560 (E.D. Mich. 1980). A professor sued a
university, charging that he was guaranteed “a tenure review in his sixth year, or
at least an ad hoc renewal committee, and a seventh terminal year” based on
rules, policy statements, and customs of the university. The court agreed that
“[i]n Michigan an employee can have contractual rights in the procedures and
benefits found in statements of policy,” but found that the university had properly
followed its guidelines and procedures.
Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976). A university’s failure to
follow its own handbook in terminating the employment of a tenured professor
may raise an administrative state law claim, but was not a violation of
constitutional due process rights because the professor was given a meaningful
hearing.
MINNESOTA
Cooper v. Gustavus Adolphus College, 957 F. Supp. 191 (D. Minn. 1997).
Faculty handbook provisions that (1) give the complainant, not the accused, sole
discretion to initiate a formal sexual harassment grievance process, and (2)
provide separate procedures for the dismissal of tenured professors were
incorporated into a tenured professor’s employment contract. Whether the
college breached the professor’s contract by failing to comply with the faculty
handbook’s dismissal procedures for tenured faculty is a factual issue to be
determined by a jury.
Eldeeb v. University of Minnesota, 864 F. Supp. 905 (D. Minn. 1994), aff’d,
60 F.3d 423 (8th Cir. 1995). Although a tenure code was part of an employment
contract between a university and an oral surgeon-professor, general policy
statements such as “due process” and “academic freedom” in a tenure code and
nondiscrimination brochure did not meet contractual requirements under
Minnesota law because of the difficulty of determining whether a breach has
occurred. A faculty handbook may become the basis of a contract if terms are
specific and communicated to a professor.
22
MISSISSIPPI
Whiting v. University of Southern Mississippi, 451 F.3d 339 (5th Cir. 2006).
After being denied tenure, professor with excellent evaluations sued, claiming
Faculty Handbook guaranteed tenure if she met or exceeded criteria used for
evaluation. Court ruled that Handbook’s apparent assurance of tenure was
vitiated by other sections of the handbook that made clear that tenure was never
guaranteed and was made contingent on the board of trustees’ and president’s
acceptance.
Holland v. Kennedy, 548 So.2d 982 (Miss. 1989). “[T]he express terms of a
contract of employment may be supplemented by provisions of a personnel
manual. If the handbook or policy statement is intended to supplant or modify the
express terms of the contract, however, such an intent must also be expressed.”
Because the express terms of a professor-administrator’s contract were
ambiguous, the professor could introduce evidence of an employer’s past
practices and oral representations, as well as the policy handbook, to support the
claim that his appointment was for a definite term.
Robinson v. Board of Trustees of East Central Junior College, 477 So.2d
1352 (Miss. 1985). Because a professor’s one-page contract specifically referred
to policies, rules, and regulations promulgated by the board of trustees, the
provisions of the faculty handbook became part of the professor’s contract. Even
without evidence of the formal adoption of a handbook, the board was
nonetheless bound by provisions because of the “use and dissemination of the
publications and the terms of the contract entered into by the parties.”
MISSOURI
Daniels v. Board of Curators of Lincoln University, 51 S.W.3d 1 (Mo. App.
2001). A tenured professor also held a position as vice president of student
affairs, which was governed by an employee handbook. Although the university
had a policy that said employees served at will, it also had employee handbook
provisions that guaranteed that staff would not be dismissed without good cause.
The court found that the promise not to dismiss without cause gave the professor
“a protected property interest in his continued employment [as vice president],
thus entitling professor to notice of the reasons for termination and an
opportunity to be heard.”
23
Muth v. Board of Regents of Southwest Missouri State University, 887
S.W.2d 744 (Mo. App. 1994). The faculty handbook included a grievance
process for faculty members to object to a denial of tenure. After being denied
tenure, a faculty member, rather than exhaust her administrative remedies, filed
suit in state court. The state appellate court ruled that a court can hear a tenure
dispute only after all internal administrative remedies have been exhausted, as
provided in the handbook.
Krasney v. Curators of University of Missouri, 765 S.W.2d 646 (Mo. App.
1989). Neither prior appointments nor any provision of a university’s manual
created the right to reappointment under a temporary librarian’s specific term
contract.
Snowden v. Northwest Missouri State University, 624 S.W.2d 161 (Mo. App.
1981). A nontenured faculty member’s claim that he was not given timely notice
of nonrenewal was rejected on the grounds that the faculty handbook clearly
identified the timing for notice for faculty members on regular contracts.
MONTANA
Ashtar v. Van De Wetering, 642 P.2d 149 (Mont. 1982). Eastern Montana
College’s code, which was specified as the Rank and Tenure Committee’s
operating manual, “although by its nature a pseudo-extension of the contract,”
was not part of the contract. The court followed the rationale of Gates v. Life of
Montana Ins. Co., 638 P.2d 1063 (Mont. 1982), which held that an employee
handbook was not part of an employee’s contract because it was not bargained
for and no meeting of minds existed.
NEBRASKA
Brady v. Curators of University of Trustees of Nebraska State Colleges, 242
N.W.2d 616 (Neb. 1976). A college violated a tenured professor’s contract rights
by terminating his employment without notice and hearing as required by the
faculty handbook. The professor’s participation in grievance procedures under a
collective bargaining agreement did not terminate his contractual rights to due
process under the faculty handbook.
24
NEVADA
University of Nevada, Reno v. Stacey, 997 P.2d 812 (Nev. 2000). A professor
claimed that he should have been granted tenure when he met the threshold rating
requirements set out in a university’s bylaws and administrative manual. The
court found that the manual and bylaws were “incorporated by reference” into the
professor’s employment agreement with the university. However, the professor
was not guaranteed tenure because the manual and bylaws made clear “the
discretionary nature of [the university’s] decision to grant tenure.”
NEW HAMPSHIRE
Dillman v. New Hampshire College, 838 A.2d 1274 (N.H. 2003). The college
appealed a jury verdict in favor of the college’s former audio visual director and
a decision by the trial court denying the college’s motion for a directed verdict.
The director’s letter of appointment stated that his position was “covered under
the policies and procedures outlined in the New Hampshire College Unified
Handbook.” Subsections of the handbook suggested that an employee could be
fired for just cause only. The court held that these provisions were sufficient
evidence for a jury to conclude that the director was not an at-will employee,
therefore affirming the denial of a directed verdict.
Young v. Plymouth State College, 1999 U.S. Dist. LEXIS 22745 (D.N.H.
Sept. 21, 1999). A professor brought a claim of breach of contract based on a
college’s failure to follow its handbook’s provisions. The court noted that “an
employer's handbook or policy statement may form an enforceable unilateral
contract,” but found that the disclaimer in this particular handbook “effectively
prevented the formation of any enforceable contract provisions with respect to
the College’s complaint and termination procedures.”
NEW JERSEY
Fanelli v. Centenary College, 2004 WL 2364894 (3d Cir. Oct. 21, 2004)
(unpublished). A former director of the college’s graduate programs sued for
breach of contract. The court found that although the institution’s constitution
provides that full-time faculty members cannot be dismissed without cause and
due process, the director was not a full-time faculty member, and so was not
25
covered by the constitution. Instead, her employment was covered by the “Staff
Handbook,” which provided that she could be dismissed at will.
Healy v. Fairleigh Dickinson University, 671 A.2d 182 (N.J. App. Div.),
cert. denied, 678 A.2d 713 (N.J.), cert. denied, 519 U.S. 1007 (1996). A
professor’s claim of de facto tenure after completion of fourteen continuous
semesters was rejected as conflicting with “formal, established tenure procedure”
delineated in the handbook.
Alicea v. New Brunswick Theological Seminary, 581 A.2d 900 (N.J. App.
Div. 1990). A seminary failed to provide a faculty member, who had been denied
tenure, with grievance procedures in accordance with the faculty manual. The
seminary was “obliged by [its] established procedures to provide plaintiff with a
forum for resolution of his claim.”
NEW MEXICO
Bauer v. College of Santa Fe, 78 P.3d 76 (N.M. App. 2003). Contesting the non-
renewal of their appointments, two nontenured professors argued that the criteria
for reappointments provided in the college’s handbook required the college to
reappoint them. The parties agreed that the employment relationship between
them was governed both by the signed letters of appointment and by the faculty
handbook, which stated that “faculty members will be appointed or reappointed
subject to their professional qualifications.” However, the handbook also
provided that “nonreappointment” occurs when action is “taken by the
administration not to renew the standard contract of a probationary faculty
member after the expiration of his/her contract.” In this case, the court held that
the college had simply exercised a right of “nonreappointment” as described by
the handbook, and the college therefore did not breach any employment contract.
Handmaker v. Henney, et al., 992 P.2d 879 (N.M. 1999). A professor’s claim
relied in part on representations by the university to provide context for
interpreting the contract. The state supreme court returned the case to the district
court on grounds that the case was prematurely appealed. In doing so, however,
the court noted that the issue of contract interpretation was “best informed” by
Garcia v. Middle Rio Grande Conservancy Dist., 918 P.2d 7, 12-13 (N.M. 1996),
which held that “an employment contract may be implied in fact from a term
exhibited in writing in, for example, a personnel policy manual.”
26
Hillis v. Meister, 483 P.2d 1314 (N.M. App. 1971). Although a professor’s
contract at Eastern New Mexico University made no reference to a handbook, the
court found that the handbook “govern[ed] the relationship between the faculty
members and the university’s administration” and that the university’s failure to
follow reappointment procedures set forth in the handbook was a breach of
contract.
NEW YORK
Ricioppo v. County of Suffolk, et al., 2009 U.S. Dist. LEXIS 18979 (E.D.N.Y.
March 4, 2009). A community college’s personnel handbook said that
“Administrative Officers entering their sixth year of employment with the
College shall be granted continuing appointment.” An administrator and
sometime faculty member had been employed by the college from 1995 through
2003, and argued that he had automatically received a “continuing appointment”
(akin to tenure) upon his sixth year of employment. The federal district court
disagreed, noting that the Handbook states that it is a “guide and does not
substitute for existing practice”; that the Handbook reserves the Trustees’ right to
change the personnel policies “as they deem appropriate”; and that the existing
practice at the college was that a fifth-year probationary employee was eligible
for a continuing appointment, dependent upon the president’s recommendation
and the Board’s approval.
Postol v. St. Joseph’s College, 777 N.Y.S.2d 699 (App. Div. 2004). A full-
time non-tenure-track faculty member sued the college for unfairly denying his
application for a tenure-track position. His employment contract as a non-tenure-
track professor specifically stated that he was bound by the terms of the faculty
handbook. The court affirmed the trial court’s dismissal of the professor’s suit
because he had failed to exhaust administrative remedies as set forth in the
handbook, which required him to file an internal grievance.
Byerly v. Ithaca College, 290 F. Supp. 2d 301 (N.D.N.Y. 2003). A
professor’s motion to add a breach-of-contract claim to her complaint in federal
court was denied because her claim was based upon the college’s alleged failure
to follow procedures set forth in the faculty handbook. Any claims based upon
the rights and procedures found in college manuals or handbooks may be
reviewed only in a special Article 78 proceeding in the state trial court.
27
Rajagopalan v. Mount Sinai Med. Ctr., 769 N.Y.S.2d 524 (App. Div. 2003).
To incorporate the terms of a faculty handbook into a letter of appointment, the
professor must demonstrate both reliance upon its terms and resulting detriment.
An associate professor appointed to a five-year term met neither of the above
criteria. Therefore, the court affirmed the dismissal of his breach-of-contract
claim.
Sackman v. Alfred University, 717 N.Y.S.2d 461 (Sup. Ct. 2000). A
university’s failure to follow a handbook’s tenure procedures and policies
entitled the professor to a new tenure review, but the court denied the professor’s
claim that the university breached his contract when it failed to grant tenure.
Maas v. Cornell University, 721 N.E.2d 966 (N.Y. 1999). A handbook was
not part of an employment contract where a university did not express an intent
to have the handbook become part of the contract, the handbook was heavily
informational in nature, and the handbook clearly stated that it could be altered at
any time.
Holm v. Ithaca College, 669 N.Y.S.2d 483 (Sup. Ct. 1998). “Handbook rules,
if duly authorized, are contractual in nature and, so far as applicable, bind both
the college and the plaintiff.” Therefore, a tenured faculty member waived
contractual rights to peer review and grievance procedures by not having filed
under procedures set forth in two different handbooks in effect during his
employment.
Pearce v. Clinton Community College, 667 N.Y.S.2d 781 (App. Div. 1998).
Employment-at-will principles remain in place when a faculty manual does not
limit the administration’s power of dismissal through specified termination
procedures.
Roufaiel v. Ithaca College, 660 N.Y.S.2d 595 (App. Div. 1997). A professor
at a private college stated a breach-of-contract claim based on the provost’s
memorandum stating that the college would not apply a tenure density rule (a cap
of no more than 75 percent of tenure-eligible positions), since a memorandum
could be construed as an express limitation on the college’s discretion. However,
no cause of action arose from the allegation that the college failed to follow
certain rules governing the tenure review process because no express provision
existed in the faculty handbook that such a failure limited the college’s discretion
in granting tenure: “The right to bring breach of contract [claims is] recognized
28
where there are express limitations on college’s discretion in tenure review
process.”
De Simone v. Siena College, 663 N.Y.S.2d 701 (App. Div. 1997). A
college’s decision not to renew a professor’s contract was permissible because
nothing in the faculty handbook or the professor’s employment contract
mandated renewal or substantively limited the college’s discretion not to renew.
The college did not breach the professor’s employment contract when (1) it failed
to provide him with written evaluations of his teaching ability, as called for in the
faculty handbook, because the professor was terminated for failure to get along
with colleagues, rather than for any teaching deficiency; and (2) it was allegedly
two days late in sending the professor notice of its intent not to renew his
contract because this error was de minimis.
Klinge v. Ithaca College, 663 N.Y.S.2d 735 (App. Div. 1997). A faculty
handbook’s immediate dismissal provision, which provided that no letter of
warning was required in certain cases involving “a flagrant and egregious abuse
of position,” governed the employment termination of a tenured professor
accused of plagiarism.
Bennett v. Wells College, 641 N.Y.S.2d 929 (App. Div. 1996). A private
college was directed to conduct a de novo (new) tenure review because of its
failure to follow faculty handbook rules in denying tenure to a professor. The
college’s review lacked the active involvement of the college president, no direct
communication existed between the administration and faculty in the tenure
decision, and the dean’s negative tenure recommendation was based on declining
student enrollment, which was not a criterion enumerated in the faculty
handbook.
Polakoff v. St. Lawrence University, No. 95-CV-1660, 1996 WL 481552
(N.D. N.Y. Aug. 19, 1996) (unpublished). A professor successfully stated a
breach-of-contract claim, based on a faculty handbook provision that “[t]his
policy of equal employment opportunity . . . governs all University employment
policies, practices and actions,” because the university used improper criteria and
procedures to deny her tenure for discriminatory reasons. Under New York law, a
handbook may give rise to contractual duties if “there exists an ‘express
limitation’ on employer’s rights.”
29
NORTH CAROLINA
Mayo v. North Carolina State University, 608 S.E.2d 116 (N.C. App. 2005). The
administration sought to have a professor repay his summer salary, since the
professor resigned as of the fall and the institution treated the salary during the
summer as “prepayment” for the following academic year. The state appellate
court rejected the administration’s argument, ruling that the tenured faculty
member’s written employment agreement, which consisted of his appointment
letter, annual salary letter, the policies adopted by the trustees, and the faculty
handbook, failed to contain such a repayment policy. Since the language of these
documents was clear as to the faculty member’s salary, the university was not
allowed to introduce other evidence concerning salary payments.
Massie v. Board of Trustees, Haywood Community College, 2005 WL
375594 (W.D.N.C. Feb. 16, 2005). The court denied summary judgment on a
welding instructor’s breach-of-contract claim, stating that there was a genuine
issue of fact whether the faculty handbook provision regarding maximum course
loads had been incorporated into the instructor’s employment contract.
Claggett v. Wake Forest University, 486 S.E.2d 443 (N.C. App. 1997). A
professor alleged that a university’s policies, procedures, and guidelines were
part of his employment contract. The court determined that the university did not
breach its contract with the professor in rejecting the professor’s tenure
application because “[t]he mere allegation that defendant failed to grant the
plaintiff tenure is insufficient to allege any breach by defendant of the terms of
plaintiff’s employment contract.”
Black v. Western Carolina University, 426 S.E.2d 733 (N.C. App. 1993).
North Carolina provides that handbooks or policies do not become part of
employment contracts unless expressly included in a contract; therefore, because
university code provisions regulating fixed-term appointments were not
incorporated expressly either into a professor’s employment contract or the
handbook, the professor was not entitled to notice of nonreappointment beyond
the expiration date in the original contract.
NORTH DAKOTA
Peterson v. North Dakota University System, 678 N.W.2d 163 (N.D. 2004). The
State Supreme Court ruled that regulations adopted by the State Board of
30
Education as part of its policy manual govern the dismissal of faculty members
and are part of the employment contract, citing Hom v. State (discussed below).
Long v. Samson, 568 N.W.2d 602 (N.D. 1997). A faculty member’s lawsuit
alleging contractual and tort claims arising from the University of North
Dakota’s tenure review process was dismissed because his employment contract
was governed by the procedural regulations set forth in the faculty handbook, and
he had not pursued the administrative remedies required therein.
Thompson v. Peterson, 546 N.W.2d 856 (N.D. 1996). A faculty member’s
employment agreement “was specifically governed by the NDSU [North Dakota
State University] University Senate Policy Implementing Procedural Regulations
and by the State Board regulations” (citing Hom).
Hom v. State, 459 N.W.2d 823 (N.D. 1990). Regulations, including those
governing employment termination, adopted by the State Board of Education as
part of the policy manual are part of a contract between the institution and the
faculty member.
Stensrud v. Mayville State College, 368 N.W.2d 519 (N.D. 1985). A
professor sued a college for its failure to follow precisely the handbook
provisions for termination. The professor received “reasonable notice” of her
employment termination, and this notice in no way compromised her procedural
rights. “[S]ubstantial compliance with the procedural requirements for
termination is sufficient if their purpose is fulfilled.”
OHIO
Chan v. Miami University, 652 N.E.2d 644 (Ohio 1995). A university violated a
tenured professor’s due process rights and breached the professor’s employment
contract, which incorporated by reference the university’s faculty manual, in
terminating the professor’s employment under a rule prohibiting sexual
harassment, rather than under the rule and procedure providing for dismissal of
tenured faculty.
Brahim v. Ohio College of Podiatric Medicine, 651 N.E.2d 30 (Ohio App.
1994), cert. denied, 648 N.E.2d 515 (Ohio 1995). A college’s dismissal of a
professor did not breach the professor’s employment contract, where the faculty
handbook was incorporated by reference into the professor’s appointment letter
31
because evidence indicated that the college followed the handbook’s grievance
procedures, and sufficient cause existed to terminate the professor’s contract.
Yackshaw v. John Carroll University Board of Trustees, 624 N.E.2d 225
(Ohio App. 1993). A professor dismissed by a private university was not entitled
to the court’s de novo review, but merely to the determination whether the
university breached the professor’s contract and whether substantial evidence
existed in the administrative record to support dismissal. The private university
properly terminated the tenured professor’s employment contract, which
incorporated by reference the faculty handbook, after an investigation and
internal hearings, which complied with the handbook, found the professor unfit
because of “moral turpitude.”
OKLAHOMA
Bunger v. University of Oklahoma Board of Regents, 95 F.3d 987 (10th Cir.
1996). A university did not violate a professor’s procedural due process rights
because nontenured faculty members at public institutions do not possess a
constitutionally protected property interest in reappointment beyond a specified
contract period, nor do procedural protections in a faculty handbook create a
property interest in reappointment.
Skimbo v. Eastern Oklahoma State College, 1996 WL 822817 (Okla. App.
Aug. 20, 1996). A state university breached its contract with a tenured professor
when it eliminated the professor’s department because of apparent financial
problems and effectively terminated his employment by offering him an adjunct
position instead of laterally transferring him to “substantially similar status” in
the area in which he was qualified to teach and for which he could receive a full-
time tenured faculty salary. A full-time position could have been created by
combining adjunct and nontenured faculty positions. While the faculty handbook,
which was specifically incorporated by reference into the professor’s
employment contract, allowed nonrenewal of employment contracts when a
department was eliminated, the handbook also granted preferential status to
tenured faculty.
Jones v. University of Central Oklahoma, 910 P.2d 987 (Okla. 1995).
“[W]here a written formal tenure policy exists, and the court finds that that policy
constitutes an express contract, a university professor cannot have a legitimate
32
claim to tenure pursuant to an informal, unwritten tenure policy” based solely on
length of service.
Beck v. Phillips Colleges, Inc., 883 P.2d 1283 (Okla. App. 1994). A president
of a junior college, who had been dismissed, introduced the college “policy
manual” as part of written evidence of an implied contract of employment. While
the court noted that “employer handbooks and policy manuals” are factors
critical to determining whether an implied contract of job security exists, the
court found that the written instruments submitted were “simply too vague to
constitute an implied contract.”
OREGON
Conway v. Pacific University, 924 P.2d 818 (Or. 1996). A former visiting
professor was appoined to a tenure-track position but did not pass his
probationary period. The professor sued. The court ruled that notwithstanding a
dean’s assurances to the professor that poor student evaluations would not affect
his tenure prospects, the university acted properly in not renewing the professor’s
contract based on poor student evaluations. The court reasoned that the
university’s conduct did not give rise to a negligent misrepresentation claim—
even though the university handbook required the university to provide
information to employees concerning career advancement and job performance—
because the contract did not create a “special” relationship required to establish
such a claim.
Machunze v. Chemeketa Community College, 810 P.2d 406 (Or. App.), cert.
denied, 815 P.2d 406 (Or. 1991). A college handbook and the faculty member’s
individual contract did not support a community college employee’s claim that
her appointment was conditioned solely on satisfactory evaluations and,
therefore, no implied agreement existed to renew her contract.
PENNSYLVANIA
Shepard v. Temple University, 948 A.2d 852 (Pa. Super. Ct. 2008). Plaintiff, a
professor at Temple University, filed suit against Temple, claiming that its denial
of her application for tenure constituted a breach of her employment contract as
well as the terms of the faculty handbook. On appeal, the Pennsylvania Superior
Court found that the university complied with the handbook and her employment
33
contract, and that Shepard’s claim really sought judicial review of the university
president’s decision not to renew her. The court refused to review the president’s
decision, holding that the assessment of tenure factors “is best performed by
those closely involved in the life of the institution, not by judges.”
Atkinson v. Lafayette Coll., No. 01-CV-2141, 2003 U.S. Dist. LEXIS 13951
(E.D. Pa. July 24, 2003) (unpublished). Although the district court did not
explicitly state that the faculty handbook was part of the employment contract,
the court relied on both the letter of appointment and the handbook in
determining that the professor did not have tenure. The letter of appointment
stated that the professor’s position was “at the pleasure of the President of the
College and the Board of Trustees,” and the handbook provided that tenure
would not be granted “by default.” Accordingly, the court found no breach of
contract.
Ferrer v. Trustees of the University of Pennsylvania, 2002 Pa. LEXIS 3107
(Pa. Dec. 31, 2002) (unpublished). The administration launched a formal
investigation, in compliance with the faculty handbook, into a faculty member’s
research program to determine if the faculty member had engaged in misconduct.
The investigation found that the allegations of misconduct were unsubstantiated.
According to the handbook, when a faculty member is found not guilty of
misconduct, the matter shall be dropped and the dean must take an active role to
repair any damage done to the professor’s reputation. Instead, the dean
unilaterally imposed sanctions on the professor. The faculty member sued for
breach of contract, claiming that under the faculty handbook the university was
obligated to work to repair his reputation after the investigation found no
wrongdoing. The court agreed and awarded the faculty member $2.9 million.
Pourki v. Drexel University, No. 98-4231, 1999 U.S. Dist. LEXIS 4519 (E.D.
Pa. Mar. 24, 1999) (unpublished). “Under Pennsylvania law, employment
relationships are presumed to be at-will. An employee can overcome this
presumption by presenting evidence of a contract with specific and definite terms
regarding length of employment or cause of termination.” A university’s faculty
handbook gave the president and board of trustees final authority to override the
faculty’s tenure recommendations, so the faculty handbook did not override
presumption of at-will employment.
Gulezian v. Drexel University, No. 98-3004, 1999 U.S. Dist. LEXIS 3276
34
(E.D. Pa. Mar. 19, 1999), reh’g denied, No. 98-3004, 1999 U.S. LEXIS 4624
(E.D. Pa. Apr. 8, 1999) (unpublished). “An employer’s handbook does not create
contractual rights absent a clear representation that it is to have such an effect.”
Therefore, regarding a breach-of-contract claim for failure to grant tenure (which
was dismissed on other grounds), the court stated, “It appears from the pertinent
language in the Handbook that defendant [University] merely articulated in
generalized terms the factors considered when making decisions, that there was a
tenure quota, that tenure was discretionary and that no professor was assured of
obtaining tenure.”
Gronowicz v. Pennsylvania State University, 1997 WL 799438 (E.D. Pa.
Dec. 29, 1997), aff’d, 168 F.3d 478 (3rd Cir. 1998). A professor, who was
required to sign a “Memorandum of Personal Service” stating that he was
“entitled to benefits of, and agree[d] to abide by, regulations” of the university,
failed to state a breach-of-contract claim when the university denied him tenure
and terminated his employment because the memorandum, along with other
university policies concerning tenure, failed to form an express employment
contract. To overcome the presumption of at-will employment in Pennsylvania, a
professor must demonstrate “(1) sufficient additional consideration; (2) an
agreement for a definite duration; (3) an agreement specifying that employee will
be discharged only for just cause; or (4) an applicable recognized public policy
exception.”
Block v. Temple University, 939 F. Supp. 387 (E.D. Pa. 1996). A professor
claimed that a university breached its contract, created by the faculty handbook
and the collective bargaining agreement, when the professor allegedly withdrew
his tenure application based on the institution’s promise that he would later
receive a “fresh and fair” tenure review. The matter had to be resolved under the
grievance procedure of the collective bargaining agreement because the
professor’s employment agreement provided for tenure review under the
handbook and collective bargaining agreement.
Miller v. Trustees of University of Pennsylvania, 1993 U.S. Dist. LEXIS
13141 (E.D. Pa. Aug. 2, 1993) (unpublished). A professor alleged he was
wrongly denied tenure even though he fulfilled the standard of “intellectual
leadership” that was listed in the faculty handbook as the chief criterion for
attaining tenure. “Under Pennsylvania law, policies in employee handbooks can
35
be binding on an employer.” However, the court found that the policies were
“‘aspirational’ statements lack[ing] the clarity and specificity that Pennsylvania
courts require to overcome the presumption of at-will employment. Further,
where provisions in an employee handbook give the employer the exclusive
authority to evaluate an employee’s performance, they . . . cannot defeat the at-
will presumption of employment.”
RHODE ISLAND
Dunfey v. Roger Williams University, 824 F. Supp. 18 (D. Mass. 1993). Under
Rhode Island law, a university handbook that can be amended unilaterally by an
institution at any time does not create contractual rights.
SOUTH CAROLINA
Connor v. City of Forrest Acres, 348 S.C. 454 (Sup. Ct. 2002). An employee, a
former police dispatcher who had received a negative performance evaluation,
filed a breach-of-contract claim against the city after she was discharged. The
South Carolina Supreme Court recognized that because an employee handbook
may create a contract, the existence of such a contract is an issue for the jury to
decide.
Dodgens v. Kent Mfg. Co., 955 F. Supp. 560 (D.S.C. 1997). A former
employee was terminated by his employer for job-related mistakes. The
employee filed a breach-of-contract claim, but the court found that he was
employed at-will and thus not entitled to relief. While South Carolina courts
recognize that an employer can alter an employee’s at-will status through its
employee manual, the court in this case held that the employee handbook did not
create an implied contract.
SOUTH DAKOTA
Lau v. Behr Heat Transfer Sys., 150 F. Supp. 2d 1017 (D.S.D. 2001). The
discharged employees filed suit against their employer for breach of contract and
wrongful termination. The parties agreed that the employee handbook was an
employment contract. Although South Dakota law provides that employment
having no specific term can be terminated at the will of either party, the court
recognized that an exception exists where the employee handbook specifically
36
provides that an employer can discharge its employees “for cause only.” The
court ruled, however, that the employee handbook contained no such language.
TENNESSEE
Langland v. Vanderbilt University, 589 F. Supp. 995 (D. Tenn. 1984), aff’d
mem., 772 F.2d 907 (6th Cir. 1985). The parties stipulated that tenure provisions
in a faculty manual were part of a faculty member’s individual contract, and the
court ruled that the plain language of the manual supported the conclusion that
the dean evaluated the faculty member’s scholarship under the appropriate
standard in the faculty handbook.
TEXAS
Fox v. Parker, 98 S.W.3d 713 (Tex. App. 2003). A tenured professor sued a
student and the university for defamation and breach of contract after his
employment was terminated following allegations of sexual misconduct. Each
year, the professor received and signed a letter extending his appointment with
the university. The annual letter stated that if the professor accepted appointment
with the university, his complete contract consisted of the letter and the
applicable provisions of the university’s personnel policy manual. Therefore, the
court held that the applicable dismissal procedures were those contained in the
manual.
Halper v. University of Incarnate Word, 90 S.W.3d 842 (Tex. App. 2002). A
faculty member entered into a one-year contract with a private university. The
signed contract stated that “termination of this contract is governed by Faculty
Handbook policy.” While the contract referenced the faculty handbook, neither
party signed the handbook. Before the expiration of the one-year contract the
faculty member applied for tenure, which was denied. The faculty member then
sued the university, claiming that the unsigned faculty handbook was
incorporated by reference into his letter of appointment. The court agreed. The
faculty member then claimed that the university’s decision not to award him
tenure breached the restrictions on nonreappointment contained in the faculty
handbook. The court disagreed, finding that the university’s decision to deny
tenure was in compliance with the faculty handbook.
37
Curtis v. University of Houston, 940 F. Supp. 1070 (S.D. Tex. 1996), aff’d
mem., 127 F.3d 35 (5th Cir. 1997). A public university claimed that it denied
promotion to a tenured associate professor based on “his lack of a published
research monograph, his lack of national visibility, and his hiatus from a
productive output of academic materials.” The university’s faculty handbook did
not give the professor future expectation of a property interest in promotion to
full professor, but merely a property interest in status as a tenured associate
professor.
Owens v. Board of Regents of Texas Southern University, 953 F. Supp. 781
(S.D. Tex. 1996). A professor at a state university was denied tenure and sued,
contending various claims including that a revised faculty manual, in effect at the
time she was denied tenure and explicitly stating that tenure was granted only
upon affirmative action by the board of regents, did not govern her tenure denial
because the university violated timely notice provisions in the faculty manual
regarding tenure application and denial. The court ruled that it was premature to
determine which version of the handbook governed the professor’s tenure, and
whether she was entitled to de facto tenure under an earlier faculty manual.
Spuler v. Pickar, 958 F.2d 103 (5th Cir. 1992). An assistant professor sued a
public university, alleging that he was denied due process in being refused tenure
and having his employment terminated. Texas law provides that faculty
handbooks, standing alone, “constitute no more than guidelines absent express
reciprocal agreements addressing discharge protocols and, therefore, professor
enjoyed no property interest in continued employment or an assurance of tenure.”
UTAH
Doi v. University of Utah, 2004 WL 2457792 (D. Utah Oct. 28, 2004). The
assistant dean of the College of Education lost her job when her position was
eliminated. Her breach-of-contract claims based on the university’s manual were
dismissed as barred by the state’s sovereign immunity (meaning that the state
could not be sued).
Cherry v. Utah State University, 966 P.2d 866 (Utah App. 1998). Under a
university’s code of policies and procedures, an assistant professor was entitled
to review by the Tenure Advisory Committee (TAC) regarding her tenure
candidacy, but not her reappointment. Therefore, the professor could not appeal
38
to the TAC her termination of employment by the president. “[A]n educational
institution may undertake a contractual obligation to observe particular
termination formalities by adopting procedures or by promulgating rules and
regulations governing the employment relationship.”
VERMONT
Logan v. Bennington College Corp., 72 F.3d 1017 (2d Cir. 1995), cert. denied,
519 U.S. 822 (1996). A professor with “presumptive tenure”—a five-year
contract that would be renewed in the absence of substantial failure to perform,
financial problems, or elimination of the position by the college owing to policy
changes—was properly dismissed by the college for “good cause” for violating
an “interim” sexual harassment policy in the faculty handbook. While a jury
could have reasonably interpreted the faculty handbook as an employment
contract between the professor and the college, the adoption of an interim sexual
harassment policy failed to constitute breach of contract, even though it was not
approved by the faculty as required by the faculty handbook, because the interim
policy did not “substantially” change the college’s harassment policy and,
therefore, faculty consultation and approval were not required. Furthermore,
alleged “procedural flaws” during the professor’s appeal and hearing did not
constitute a breach because these flaws did not violate the faculty handbook
provisions.
Nzomo v. Vermont State Colleges, 138 Vt. 73 (Sup. Ct. 1980). An untenured
professor at Castleton State College charged that he had been improperly
terminated. Although general rules for dismissal set forth for all Vermont state
colleges by the Vermont State trustees were followed, rules in the faculty
handbook of Castleton State College were not followed. The court held that the
college improperly failed to follow handbook provisions and that the procedures
for termination were not modified by past conduct. The court found that the labor
board was correct in rewarding only out-of-pocket expenses to the professor;
neither reinstatement nor back pay was necessary because the decision to
terminate the professor’s appointment would have been made even if proper
procedures had been followed.
39
VIRGINIA
Tuomala v. Regent University, 477 S.E.2d 501 (Va. 1996). Three professors
signed “three-year continuing contracts” for “tenured faculty appointment[s],”
the terms of which were defined in the faculty handbook, and the university later
modified that handbook to provide that professors receiving appointments under
continuing contracts were entitled to annual “new contract[s],” rather than
renewal of existing contracts. In the end, the professors were entitled to three
years of employment under their three-year contracts, and after that they were
entitled to one-year contracts only.
Sabet v. Eastern Virginia Medical Authority, 775 F.2d 1266 (4th Cir. 1985).
A professor believed that a university offered “permanent tenure” in accordance
with AAUP policy. This belief, based on the widespread adoption of AAUP
policies and the fact that the university had always renewed contracts in the past,
was not justified, the court ruled, when the faculty handbook stated that the
university had no such tenure policy.
Siv v. Johnson, 748 F.2d 238 (4th Cir. 1984). Where standards for tenure in
the faculty handbook were formally adopted by the board of visitors, which had
sole authority to grant tenure, the standards were presumed by the court to be part
of a nontenured professor’s contract. Although the handbook stated that faculty
recommendations for tenure should be followed barring some “compelling
reason,” the faculty member’s constitutional due process rights were not violated
when the administration denied tenure in spite of faculty recommendations and
did not state a compelling reason for doing so. The administration’s decision was
based on the perceived lack of scholarly potential, a constitutionally permissible
reason.
WASHINGTON
E.I. Du Pont de Nemours & Co. v. Okuley, 344 F.3d 578 (6th Cir. 2003), cert.
denied, 541 U.S. 1027 (2004). According to the Washington State University
faculty manual, the university “holds ownership in patents and other non-
patentable intellectual products as a result of their employment.” The parties
agreed that the faculty manual was a legally binding part of the professor’s
employment contract with the university. Although the professor argued that the
university failed to notify him of its ownership in a product (a particular genetic
40
discovery) within fifty days, as required by the faculty manual, the court held that
the manual explicitly exempted from this provision any property developed under
an agreement with an outside corporate sponsor. Therefore, the university had the
right to transfer its interest to a sponsoring corporation without notifying the
professor. (The case arose in the Sixth Circuit because the faculty member had
made the discovery while working in a laboratory at Ohio State University; the
court referred to the WSU handbook, however, and applied Washington contract
law.)
Mills v. Western Washington University, 208 P.3d 13, (Wash. Ct. App.
2009). A tenured faculty member in the theater department of Western
Washington University sued the university after he was disciplined during a
hearing closed to the public. The faculty member argued, among other things,
that the university’s code of ethics in the faculty handbook was
unconstitutionally vague. A trial court and the Washington State Court of
Appeals both ruled against the faculty member finding that the faculty handbook
was not vague as applied to him but the appeals court did eventually remand his
case back to the university for a second hearing because it determined that the
original hearing had been unlawfully closed to the public.
Jensen v. Walla Walla College, 117 Wash. App. 1033 (2003) (unpublished).
A tenure-track assistant professor sued for breach of contract when the college
failed to award him a three-year contract. The court held that as a matter of law
no breach of contract existed because the college followed the tenure-track
review procedures set out in the faculty handbook.
Trimble v. Washington State University, 993 P.2d 259 (Wash. 2000). “When
an employer promises in writing specific treatment in specific situations, those
promises may become an enforceable component of the employment
relationship, even in an employment-at-will situation.” However, “[a]n employee
manual in an employment-at-will situation only provides specific obligations if
the language of the manual is specific.” Therefore, a professor could not succeed
on his claim that tenured faculty should have provided written comments on his
tenure evaluation when the handbook clearly made submission of written
comments an option, not an imperative.
41
WEST VIRGINIA
Graf v. West Virginia University, 429 S.E.2d 496 (W. Va. 1992). Neither state
university medical school rules nor those of its affiliated corporation could
prohibit a faculty member’s moonlighting when the board of regents’ policy
bulletin permitted it and the employment contract specifically made the
appointment subject to the policy bulletin and the faculty handbook.
WISCONSIN
Myklebust v. Medical College of Wisconsin, 2004 WL 957935 (7th Cir. Apr. 28,
2004). A former assistant professor sued the college following the termination of
her appointment, claiming retaliation in response to her prior filing of a sexual
harassment claim. The court found that her argument based upon the employee
handbook was irrelevant because she had dropped her breach-of-contract claim.
Macgillis v. Marquette University, 514 N.W.2d 421 (Wis. App. 1993) (not
recommended for publication). The express employment contract of a professor
included an implied condition of good faith. Furthermore, the handbook could
serve to “flesh out” the terms of the contract (citing Ferraro v. Koelsch, 368
N.W. 2d 666, 668 (Wis. 1985), which held that an employee handbook can
convert an at-will relationship into one bound by contractual terms).
WYOMING
Trabing v. Kinko’s, Inc., 57 P.3d 1248 (Wyo. 2002). The Wyoming Supreme
Court held that an employee handbook from Kinko’s copying service did not
constitute a contract. Although the handbook implied that discharge could occur
only for cause, the employee had also signed an employment agreement which
specifically provided that her employment was at will. Because at-will
employees are not entitled to relief for breach of contract, the employee’s claim
failed.
McLean v. Hyland Enterprises., 34 P.3d 1262 (Wyo. 2001). An employee
alleged that he was wrongfully dismissed after he reported an unsafe working
condition. Although he claimed that the employee handbook altered the at-will
status of his employment, the court held that just because an employer may have
an employee manual does not mean that the manual covers all employees.
Moreover, any valid contract between an employer and an individual employee
42
requires offer, acceptance, and consideration. No evidence existed in this case
that the employer had made an offer to the employee to be bound by the terms of
the manual. Thus, the employee handbook did not constitute a contract.
43
REFERENCES
LAW REVIEWS
Mark L. Adams, The Quest for Tenure: Job Security and Academic Freedom, 56
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Brian G. Brooks, Adequate Cause for Dismissal: Missing Element in Academic
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Michael A. Chagares, Utilization of Disclaimer as an Effective Means to Define
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Michael A. Chagares, Comment, Limiting the Employment-at-Will Rule:
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John D. Copeland and John W. Murry, Jr., Getting Tossed from the Ivory Tower:
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Kenneth G. Dau-Schmidt and Timothy A. Haley, Governance of the Workplace:
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Jonathan Fineman, The Inevitable Demise of the Implied Employment Contract,
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Matthew W. Finkin, Regulation by Agreement: Case of Private Higher
Education, 65 Iowa L. Rev. 1119 (1980).
James J. Fishman, Tenure and Its Discontents: The Worst Form of Employment
Relationship Save All of the Others, 21 Pace L. Rev. 159 (Fall 2000).
44
John Giovannone, Note & Comment, In the Wake of Hurricane Asmus: A Lost
Opportunity in Our Struggle with Employment Handbooks, 37 Loy. L. A. L.
Rev. 1687 (2004).
Jim Jackson, Express and Implied Contractual Rights to Academic Freedom in
the United States, 22 Hamline L. Rev. 467 (1999).
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Richard Moberly, Protecting Whistleblowers by Contract, 79 U. Colo. L. Rev.
975 (2008).
Natalie Buccuarelli Pedersen, A Subjective Approach to Contracts?: How Courts
Interpret Employee Handbook Disclaimers, 26 Hofstra Lab. & Empl. L.J.
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H. Perritt, Note, Employee Handbooks: Mere Management Guidelines or
Enforceable Contracts?, 18 U. Tol. L. Rev. 459 (1987).
Richard J. Pratt, Comment, Unilateral Modification of Employment Handbooks:
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Rev. 197 (1990).
Gabriel S. Rosenthal, Note & Comment, Crafting a New Means of Analysis for
Wrongful Discharge Claims Based on Promises in Employee Handbooks, 71
Wash. L. Rev. 1157 (1996).
45
Theodore J. St. Antoine, Labor and Employment Law in Two Transitional
Decades, 42 Brandeis L. J. 495 (2004).
Deborah A. Schmedemann and Judi McLean Parks, Contract Formation and
Employee Handbooks: Legal, Psychological and Empirical Analyses, 29
Wake Forest L. J. 647 (1994).
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Contract Modification and the Sole Requirement of the Offeree’s Assent, 32
Cumb. L. Rev. 375 (2001).
R.H. Winters, Note, Employee Handbooks and Employment-at-Will Contracts,
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OTHER
Annotation, Construction and Effect of Tenure Provisions of Contract or Statute
Governing Employment of College or University Faculty Member, 66
A.L.R.3d 1018 (1975 & 2004 Supp.).
Donna R. Euben, The Faculty Handbook as a Contract: Is It Enforceable?,
Academe: Bulletin of the American Association of University Professors 87
(Sept.–Oct. 1998).
George C. Blum, Annotation, Effectiveness of Employer’s Disclaimer of
Representations in Personnel Manual or Employer Handbook Altering At-
Will Employment Relationship, 17 A.L.R.5th 1 (1994 & 2005 Supp.).
46
Theresa Ludwig Kruk, Right to Discharge Allegedly “At-Will” Employee as
Affected by Employer’s Promulgation of Employment Policies as to
Discharge, 33 A.L.R.4th 120 (1984 & 2003 Supp.).
L. Larson and P. Borowsky, “Personnel Manuals, Employer Handbooks, and
Other Written Policies,” in Unjust Dismissal §8.01–8.04 (1993).
James A. Rapp, Education Law §6.05[4] (1984 & 2004 Supp.).
Howard Specter and Matthew Finkin, Individual Employment Law and Litigation
§1.28–1.73 (1989 & 1991 Supp.).
